“16 … It is often said that the purpose of an interlocutory injunction is to preserve the status quo, but it is of course impossible to stop the world pending trial. The court may order a defendant to do something or not to do something else, but such restrictions on the defendant’s freedom of action will have consequences, for him and for others, which a court has to take into account. The purpose of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. At the interlocutory stage, the court must therefore assess whether granting or withholding an injunction is more likely to produce a just result. As the House of Lords pointed out in American Cyanamid Co v Ethicon Ltd [1975] AC 396, that means that if damages will be an adequate remedy for the plaintiff, there are no grounds for interference with the defendant’s freedom of action by the grant of an injunction. Likewise, if there is a serious issue to be tried and the plaintiff could be prejudiced by the acts or omissions of the defendant pending trial and the cross-undertaking in damages would provide the defendant with an adequate remedy if it turns out that his freedom of action should not have been restrained, then an injunction should ordinarily be granted.

17. In practice, however, it is often hard to tell whether either damages or the cross-undertaking will be an adequate remedy and the court has to engage in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld, as the case may be. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other. This is an assessment in which, as Lord Diplock said in the American Cyanamid case [1975] AC 396, 408:

“It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them.”

18. Among the matters which the court may take into account are the prejudice which the plaintiff may suffer if no injunction is granted or the defendant may suffer if it is; the likelihood of such prejudice actually occurring; the extent to which it may be compensated by an award of damages or enforcement of the cross-undertaking; the likelihood of either party being able to satisfy such an award; and the likelihood that the injunction will turn out to have been wrongly granted or withheld, that is to say, the court’s opinion of the relative strength of the parties’ cases.

19. There is however no reason to suppose that in stating these principles, Lord Diplock was intending to confine them to injunctions which could be described as prohibitory rather than mandatory… What is required in each case is to examine what on the particular facts of the case the consequences of granting or withholding of the injunction is likely to be. If it appears that the injunction is likely to cause irremediable prejudice to the defendant, a court may be reluctant to grant it unless satisfied that the chances that it will turn out to have been wrongly granted are low; that is to say, that the court will feel, … “a high degree of assurance that at the trial it will appear that at the trial the injunction was rightly granted.”

i) 20 out of 84 competing suppliers had been successful at the PQQ stage and would be invited to tender for Lot 2;ii) The range of scores of successful suppliers was 935.71 to 970.00 out of an available maximum of 970.00. The original maximum of 1000 points was reduced to 970 following the withdrawal by the Defendant of one of the questions on the PQQ as a result of a number of challenges brought by bidders;

iii) The Claimant’s score was 922 out of 970. It had therefore failed to be shortlisted by a margin of only 13.71 points (1.4%):

iv) The Claimant had scored the maximum available points in respect of all but two of the questions set out in the PQQ. These two were:

a) Question A5 (Quality Management System) – The Claimant scored 12 out of 30 for this question because its ISO 9001 accreditation was still pending. The Claimant does not take issue with this criterion or the score awarded;

b) Question L2 C6 (Breadth of Experience) – The Claimant scored 45 out of 75 for this question.

Separately to the above, marks will be awarded for demonstrating a breadth of experience across the full range of products and services relevant to each Lot. If all 5 examples provided for each Lot are relevant, they will be considered together and an additional mark awarded as below:

1. Each of the 5 examples was awarded directly to the bidding organisation

2. Each of the 5 examples are drawn from different customers …

3. The 5 examples overall demonstrate capability across the full range of products and services relevant to each Lot.

The marking scheme is as follows:

0 Not all of the 5 examples are relevant or neither criteria are met

1 All 5 examples are relevant and one of the criteria is met

3 All 5 examples are relevant and two of the criteria are met

5 All 5 examples are relevant and three of the criteria are met

Please note, no response to this question is required.” [Emphasis Added by the Claimant]

[2] All client engagement has been managed directly between B2Net and the customer with DSGI facilitating the purchase through the existing catalist framework. The contract was held between B2Net and the end user”.

“B2Net were awarded 3 marks for L2C6 as all 5 examples provided were relevant and two of the criteria were met. Four of the contract examples were not awarded directly to the bidding organisation. The response provided states that DSGI was the prime contractor in each of those examples. Therefore point 1 above [i.e. the criterion that each of 5 examples was awarded directly to the bidding organisation] was not met.

We are satisfied that the scoring of this question is correct and consistent with the instructions provided within the PQQ.”

“During the PQQ stage … the following question was asked [by another bidder] and answered [by the Defendant in a form communicated to the other bidders]

Q72 With regards to the scoring scheme for example contracts, where a contract was placed directly, owned and driven by the reseller, but a 3rd party was used purely as an invoicing mechanism, will this be scored in line with the 2 point criteria rather than the 5 point criteria…[?]

A72 Such an arrangement would not preclude the Example Contract from scoring 5 points so long as the contract was between the customer and the bidding organisation and not with the 3rd party organisation supplying the invoicing mechanism ….

With all the examples offered by B2Net the customer’s contract was always delivered by B2Net. The fact that most public sector organisations require to use OGC as a procurement framework means the requirement for a ‘direct contract’ is very difficult to provide simply due to the frameworks already in place.

DSGI are a partner to use simply as a transactional partner in these instances and are literally only an invoicing mechanism to satisfy procurement rules.

The contract, the delivery and the ongoing support of the solutions we deploy are entirely between B2Net and the end user customer”.

“35. The court must carry out its review with the appropriate degree of scrutiny to ensure that the above principles for public procurement have been complied with, that the facts relied upon by the Authority are correct and that there is no manifest error of assessment or misuse of power.

36. If the Authority has not complied with its obligations as to equality, transparency or objectivity, then there is no scope for the Authority to have a “margin of appreciation” as to the extent to which it will, or will not, comply with its obligations.

37. In relation to matters of judgment, or assessment, the Authority does have a margin of appreciation so that the court should only disturb the Authority’s decision where it has committed a “manifest error”.

38. When referring to “manifest” error, the word “manifest” does not require any exaggerated description of obviousness. A case of “manifest error” is a case where an error has clearly been made.

39. I take the above principles from the decision of the Supreme Court of Ireland in Siac Construction v Mayo County Council [2003] EuLR 1, and the decision of the Court of First Instance in Evropaiki Dynamiki v Commission 12th July 2007 at [89]“.

“It must be noted that the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order in order to prevent serious and irreparable damage to the party applying for those measures. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage of that kind…. “